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Chapel Hill Transit Partners Committee weighs in on bus advertising

Submitted by Molly De Marco on November 27, 2012 - 2:17pm

The Transit Partners, made up of representatives from the Carrboro Board of Alderfolks, UNC, and the Chapel Hill Town Council, met this morning to talk about options for allowing ads on the Chapel Hill Transit buses. After some discussion about the 5 options in front of them (from not allowing any ads to declaring the bus advertising space a public forum, greatly limiting acceptable ad restrictions), all members agreed, though a vote was not taken, to put forth Option 5, which would allow political and religious ads on Chapel Hill Transit buses with the, somewhat worrisome, caveat that the ads cannot be "offensive".

The Chapel Hill Town Council will discuss this recommendation when they again take up the bus ads issue on December 3.

Comments

caveat that the ads cannot be "offensive" So is this going to be a case of " I'm not sure I can define it but I'll know it when I see it?"Please excuse the paraphrasing but I don't see this being implemented in any sort of reasonable way.

Chris Brook, Legal Director of the NC ACLU, will make the following statement tonight regarding the potential approval of 'Option Five':

Good
evening.My name is Christopher
Brook and I am the Legal Director of the ACLU of North Carolina.Thank you, Mayor Kleinschmidt and
Councilmembers, for the opportunity to speak again on this important First
Amendment issue.

The
Chapel Hill Transit Partners Committee recently endorsed Option Five before the
Town Council this evening.Option
Five deems Chapel Hill bus advertising space a limited public forum permitting some
political and religious advertisements.This acknowledges the Town’s long tradition of allowing political and
religious advertisements on its buses and improves on Option One’s near blanket
political and religious speech ban.However, Option Five allows Chapel Hill to bar “offensive”
advertisements, a hopelessly subjective standard that could easily lead to
unconstitutional viewpoint discrimination.

The Church of Reconciliation
advertisement at the heart of the current controversy highlights the
shortcomings of Option Five.This
advertisement genuinely offended some members of the Chapel Hill
community.In fact, tonight some
of these community members have proposed a petition calling on the Town Council
to support continued military aid to Israel by the United States.While such foreign policy questions are
far beyond my expertise, this petition testifies to the fact that community
concerns were based, first and foremost, on the Church of Reconciliation
opposing military aid to Israel.

Option Five unnecessarily, and potentially
unconstitutionally, entangles the Town in this viewpoint-based discussion.If Chapel Hill determined the Church of
Reconciliation advertisement was “inoffensive” and should be allowed to run,
then the Town implicitly communicates to community members opposed to it that
their personal offense was somehow wrong.On the other hand, if Chapel Hill deemed the advertisement “offensive,” then
the Town would limit community political discourse to a still unclear moving
target.Courts have time and again
held such “subjective standards put too much discretion into the hands of
[transit] officials.”[1]

In so doing, Option Five sets a bad
precedent.The question facing the
Town Council tonight is not only whether you trust Chapel Hill staff to
dispassionately determine what is and is not “offensive,” but also whether you
would trust every other community in our state to exercise such authority
evenhandedly.

Chapel
Hill can avoid unnecessary headaches and litigation by declaring its bus
advertising space a public forum.Madison, Wisconsin has shown a public forum is fully compatible with a
top-notch transit system.Their
transit system provided 14.9 million rides in 2011 and won the American Public
Transportation Association’s 2012 Outstanding Public Transportation System
Achievement Award, all while operating its bus advertising space as a public
forum.

The
responsible decision is to embrace the Madison model by declaring Chapel Hill
transit a public forum, providing North Carolina communities a template for
trusting their residents to maturely handle even challenging speech.

Option Five unnecessarily, and potentially unconstitutionally, entangles the Town in this viewpoint-based discussion. If Chapel Hill determined the Church of Reconciliation advertisement was “inoffensive” and should be allowed to run, then the Town implicitly communicates to community members opposed to it that their personal offense was somehow wrong. On the other hand, if Chapel Hill deemed the advertisement “offensive,” then the Town would limit community political discourse to a still unclear moving target. Courts have time and again held such “subjective standards put too much discretion into the hands of [transit] officials.”

It makes no sense for the town (especially the staff, but also the council) to be determining what exactly is or is not offfensive.